Citation Nr: 0026005
Decision Date: 09/28/00 Archive Date: 10/04/00
DOCKET NO. 97-24 393 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for
slight limitation of motion of the cervical spine.
2. Entitlement to a compensable rating for bilateral
chondromalacia of the knees.
3. Entitlement to a rating in excess of 40 percent for
herniated nucleus pulposus, L5-S1, with left S1
radiculopathy.
REPRESENTATION
Appellant represented by: South Carolina Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael P. Vander Meer, Counsel
INTRODUCTION
The veteran served on active duty from May 1978 to November
1978, and from March 1980 to April 1990.
This case is before the Board of Veterans' Appeals (Board) on
appeal from rating decisions, the latest of which was entered
in December 1998, of the Department of Veterans Affairs (VA)
Regional Office (RO) in Columbia, South Carolina.
The appeal was last before the Board in September 1997, at
which time the claim for an increased evaluation for a
herniated nucleus pulposus, L5-S1, the third issue now listed
on the title page. was the only issue then before the Board.
That claim was remanded for further development. In
conjunction with the development requested in the remand, the
RO, in a rating decision entered in January 1998, increased
the evaluation for a herniated nucleus pulposus, L5-S1, with
left S1 radiculopathy, from 20 to 40 percent disabling.
A rating decision entered in December 1998 denied the first
two issues listed on the title page. In response to
disagreement conveyed by the veteran in January 1999, a
Statement of the Case was mailed to the veteran the same
month. The veteran's related Substantive Appeal was received
in March 1999. Therefore, the claims denied in December
1998, comprising the first two issues listed on the title
page, are included in the present appeal.
A hearing was held before a hearing officer at the RO in June
1999, and the hearing officer's decision was entered the
following month.
Thereafter, the appeal was returned to the Board.
REMAND
Concerning the veteran's claim of entitlement to a rating in
excess of 10 percent for slight limitation of motion of the
cervical spine, when he was examined by VA in November 1998,
he was found to have active range of motion involving his
cervical spine which was "within normal limits in all
planes." However, at his subsequent hearing at the RO, in
June 1999, the veteran indicated that he was unable to rotate
his neck to the right or left and that it was difficult to
look down. Given the veteran's testimony, it would be
helpful if the veteran's ability to execute cervical motion
in various excursions was expressed in degrees numerically.
Another examination by VA, as specified in greater detail
below, should be accomplished before further appellate action
ensues.
Regarding the veteran's claim of entitlement to a compensable
rating for bilateral chondromalacia of the knees, the Board
observes that such single disability complex is rated (as
noncompensable) in accordance with the provisions of
38 C.F.R. Part 4, Diagnostic Codes 5010-5257 (1999). When he
was examined by VA in November 1998, each of the veteran's
knees was apparently free of any internal derangement, either
suspected or ascertained. However, the report pertaining to
a magnetic resonance imaging (MRI) subsequently administered
the veteran with respect to his right knee, in January 2000,
was suspicious for a torn medial meniscus. Given such latter
study, the Board is of the opinion that pertinent examination
by VA, as specified in greater detail below, should be
performed before further appellate action ensues.
The Board is also of the opinion that, in contrast to the
veteran's presently adjudicated single disability complex
("bilateral chondromalacia of the knees"), disablement
referable to either knee is more appropriately rated
separately. Further development to accomplish the foregoing
is, consequently, specified below.
With respect to the third issue listed on the title page,
i.e., that of entitlement to a rating in excess of 40 percent
for herniated nucleus pulposus, L5-S1, with left S1
radiculopathy, the Board observes, as was noted above, that
in conjunction with the development requested in the
September 1997 Board remand, the RO, in a rating decision
entered in January 1998, increased the rating for the
veteran's herniated nucleus pulposus, L5-S1, with left S1
radiculopathy, from 20 to 40 percent disabling. Based on a
number of items subsequently submitted by the veteran, to
include (as the most recent), a VA Form 21-4138 dated in
January 2000, it appears that the veteran is not in
disagreement with the rating (i.e., 40 percent) presently
assigned for his service-connected herniated nucleus
pulposus, L5-S1. Further development to clarify such matter,
however, is specified below.
Finally, the Board observes that, in a submission dated in
June 1999, the veteran asserted a claim for service
connection for diabetes mellitus. Inasmuch as such claim has
not yet been adjudicated by the RO, further development
pertaining to the same is specified below.
Accordingly, the case is REMANDED for the following:
1. The RO should contact the veteran and
request that he indicate, in writing,
whether he is in disagreement with the
rating (i.e., 40 percent, awarded in a
rating decision entered in January 1998)
presently assigned his service-connected
herniated nucleus pulposus, L5-S1, with
left S1 radiculopathy.
2. The RO should obtain the clinical
records of the veteran's planned 1999
treatment at MUSC, referenced in the June
1999 hearing, if the veteran was seen
there. The RO should ask the veteran if
he has been otherwise treated outside VA,
and, if so, the RO should attempt to
obtain any such records.
3. The RO should obtain the relevant
current VA clinical records of the
veteran's treatment for his neck, knees,
or back, from May 1999 to the present.
4. The RO should arrange for the veteran
to undergo VA examination by a board
certified orthopedist, if available, to
determine the following:
(a) The current severity of the
veteran's service-connected limitation of
motion of the cervical spine; the
examiner is specifically requested,
relative to cervical motion exhibited in
each excursion, to express the range of
motion in degrees, numerically; the
examiner should state where, in the range
of retained motion, the veteran's
complaints of pain begin; the examiner
should also ascertain whether any
arthritis involving the cervical spinal
segment (the same having been shown on an
MRI administered the veteran by VA in
September 1998) is an aspect of the
veteran's service-connected slight
limitation of motion of the cervical
spine.
(b) The examiner should also determine
the current severity of the veteran's
service-connected bilateral
chondromalacia of the knees; the
accomplishment, relative to each knee, of
X-ray examination is specifically
requested. In addition, the examiner
should determine whether either knee
exhibits weakened movement, excess
fatigability, or incoordination, and, if
feasible, these determinations should be
expressed in terms of the degree of
additional range-of-motion loss due to
any weakened movement, excess
fatigability or incoordination; the
examiner should also address whether pain
involving either knee could significantly
limit functional ability during flare-
ups.
Relative to each aspect of the
examination addressed above, any special
diagnostic studies, in addition to the X-
ray examination requested above for each
of the veteran's knees, deemed necessary
should be performed. It is imperative
that the examiner be provided with a copy
of this remand, and the claims folder
should be made available to the examiner
for review prior to the examination.
5. If the veteran expresses a desire to
continue his appeal for an increased
evaluation for herniated nucleus
pulposus, L5-S1, with left S1
radiculopathy, any development necessary
for completion of ajudication of that
claim should be accomplished.
6. The RO should then review the
examination report(s) and actions
performed in response to the directions
in the numbered paragraphs above to
ascertain whether the development is in
compliance with the Board's examination
instructions. Any corrective action
deemed necessary should be undertaken.
7. Then, after undertaking any
development deemed necessary in addition
to that specified above, the RO should
(1) adjudicate the veteran's above-cited
recently asserted claim for service
connection for diabetes mellitus; (2)
readjudicate the claim for a rating in
excess of 10 percent for slight
limitation of motion of the cervical
spine; (3) assign separate disability
ratings relative to service-connected
disablement involving each knee; and (4)
if appropriate in light of the veteran's
response (if any) to the inquiry
addressed in the first enumerated
directive above, readjudicate the claim
for a rating in excess of 40 percent for
herniated nucleus pulposus, L5-S1, with
left S1 radiculopathy.
8. If any benefit sought on appeal is
not granted to the veteran's
satisfaction, or if he expresses
disagreement pertaining to any other
matter, to include the RO's disposition
of his recently asserted claim for
service connection for diabetes mellitus,
both he and his representative should be
provided with an appropriate Supplemental
Statement of the Case. The veteran
should also be provided appropriate
notice of the requirements to perfect an
appeal with respect to any issue(s)
addressed therein which does not appear
on the title page of this decision.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. In
taking this action, the Board implies no conclusions, either
legal or factual, as to any ultimate outcome warranted. No
action is required of the veteran unless he is otherwise
notified.
The veteran has the right to submit additional evidence and
argument on each matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
TRESA M. SCHLECHT
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).
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